103 N.Y.S. 262 | N.Y. App. Div. | 1907
Lead Opinion
This case lias been tried twice, each trial resulting in a verdict for the plaintiff. On the first trial the court set aside the verdict and dismissed the complaint. This we held was error (107 App. Div. 265), but as we were not satisfied with the' verdict we did not reinstate it, but granted a new trial. The defendants now appeal from a judgment entered on a, second verdict and from an order
The pool agreement and the plaintiff’s letter authorizing the defendants to sign it on his behalf are in evidence. That agreement provides for the purchase of not more than 400,000 nor less than 200,000 shares of stock, for the appointment of a manager with authority to buy and sell at his discretion, and for a continuance of the pool until April 1, 1903. On the first trial the plaintiff testified that he had known of pool agreements which permitted the members of the pool to sell independently of the pool. On the trial now being reviewed he said he had known of one such pool which he termed a “ floating pool,” whose members contributed from one dollar up and were permitted to come in at a stated price and go out when they wished, but he admitted that no such arrangement would be practicable in the case of a pool of from 200,000 to 400,000 shares, and that to make such a pool a success its members would have to adhere and could not be permitted to sell individually. He also admitted that it would require some time to buy as much as 200,000 shares of stock to advantage and that of necessity
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Hirschberg, P. J., Jenks and Hooker; JJ., concurred; Gaynor, J., concurred in separate memorandum.
Concurrence Opinion
I concur, but desire to put my vote on the further ground that, the plaintiff knew, and would have to be deemed as matter of law to know, what a pool to buy and sell stocks is; and that therefore for him to have an agreement with the brokers representing the pool, the agents of the pool, unknown to his associates in the pool, that he could have such brokers sell out for him the shares of stock representing his interest in the pool whenever he saw fit, would be inconsistent with the purposes of the pool, and a breach of trust'or a fraud in respect of his said pool associates. . The pool' meant that they were to stand together — buy together and sell together and share the profit or the loss—: and no secret agreement in- conflict with that status and purpose could be valid. The plaintiff could not be both in the pool and out of it, By secretly selling when he saw fit he could injure the pool — all of his associates. He could reap a profit, n.ot share it with them, and in the end not share the
Judgment and order reversed and new trial granted, costs to abide the event.